LML6002 Australian Migration Law: A Detailed Analysis - Task 2

This report provides a detailed analysis of Australian migration law, addressing specific queries related to partnership visas (subclass 309 and 820), visitor visas (subclass 600), and the code of conduct for registered migration agents. It outlines the eligibility requirements, conditions, and potential issues associated with each visa type, including the implications of invalid applications and breaches of visa conditions. The report also examines the responsibilities and duties of migration agents, particularly concerning client confidentiality and adherence to legal standards, referencing relevant sections of the Migration Act 1958 and Migration Regulations. The document concludes with a bibliography of cited legal sources and online resources.

Running Head: MIGRATION LAW
Migration Law
Name of the Student:
Name of the University:
Author Note

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Table of Contents
Answer 1..........................................................................................................................................2
Answer 2..........................................................................................................................................6
Answer 3..........................................................................................................................................7
Bibliography....................................................................................................................................8

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Answer 1
To
Charles Newman
Sub: Query in relation to partnership Visa
I am writing this letter of advice to you in relation to your doubts with respect to a
partnership visa. The letter would address your requirements as asked by you.
Primary DIFFERENCE BETWEEN 309 VISAS AND 820 VISAS
. Normally, two types of Partnership visas are available for the applicant who submit an
application regarding to get a partnership visa for Australia. These twoinclude two types of visa
are:
 Subclass 309 visas and
 Subclass 820 visas
In this letter, a detailed description, main difference, terms and conditions will be provided for
the better understanding about Partnership visas.
Subclass 309 visas:
The spouse visa for Australia subclass 309 is a temporary resident visa for those people who are
living in Australia either for a short period of time, long term basis in as Australian citizens and
for those people who are basically the citizen of New Zealand but have permission to live from
another country. Most of the people who are the New Zealand citizen can only take benefit from
this type of visa if they have permission to live in Australia for temporary accommodations.

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As you have not married Heather Smith your relationship with her may be taken as a de facto
relationship under section 5 CB1. The following are the requirements for being eligible for a 309
visa.
1) Your age must be above 18 years of age
2) You must be in a relationship and your relationship must have the minimum time-period
of one year
3) The person with whom you are applying for this visa must be a New Zealand inhabitant
who is eligible to stay in Australia or have Australian nationality.
4) Your parental relationship should not be same, means brother and sister cannot apply for
this visa either you have step siblings or have real.
5) Your partner with whom you are applying for this visa should have a permanent
residence in Australia.
These were the basic conditions for an ordinary person who want to apply for subclass 309 visa2.
Although, it is mentioned in above points that if you have a relationship, it should be consistent
for minimum 12 months. Those people who want to apply on the behalf of this condition must
follow the following conditions.
 Firstly: Your relationship must have a legal registration in the specific department of
Australia who controls such matters.
 Secondly: Your partner with whom you are applying for subclass 309 visa must have the
permanent humanitarian visa
 As you do not fulfil the above requirements, it is necessary to show a de-facto
relationship. In this condition, your visa will be valid only for two days.
The partner visa subclass 309 provided the following privileges
 Stay in the county till immigration is cleared
 Work in the county
 Be enrolled for Medicare
1 Migration Act 1958 (Cth) s 5CB
2 Partner (Provisional) Visa (Subclass 309) And Partner (Migrant) Visa (Subclass 100) (2018) Homeaffairs.gov.au
<https://www.homeaffairs.gov.au/trav/visa-1/309-/Partner-(Provisional)-visa-(subclass-309)-and-Partner-(Migrant)-
visa-(subclass-100)-document-checklist>

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.
Permanent Temporary Subclass 820 visa:
You are eligible to apply for this visa only if you have a legal and or de facto with your partner,
or a New Zealand citizen who is eligible to stay in Australia or you are an Australian citizen.
By meeting the following requirements you will be eligible for subclass 820 visa. These
requirements are that your partner must have Australian permanent residence your partner must
be an Australian citizen or your partner must be an entitled New Zealand citizen.
The visa will give an authorized permission to live in Australia and a satisfied allowance to live
with each other along with working rights. Further the application for Subclass 801 visa will
allow for the permanent stay in Australia3.
Thus it can be concluded that a person who is living in Australia can make an application for
subclass 801 visas and 820 visas. On the other hand a person who is residing outside Australia
can make an application of subclass 300 or subclass 309 visas for temporary and permanent
purpose respectively.
Valid visa application requirements
Authority is provided by section 45 of the Migration Act 1958 (MA) to the Minister for
Immigration and Citizenship for providing a visa to a non-citizen to travel, enter and remain in
the country. In addition a legal provision has been initiated through s 45 to 46 of the Act,
Division 2.07 and regulation 2.10 and Schedule 1 of the Regulations, which provides for a valid
visa application requirement in relation to different types of visas. A visa application can be valid
if made for a specific class of visa, made of a form which is required for the specific class of
visa, it must have the applicants present residential address, the visa is lodged at the correct place
and meets the requirements of schedule 1 and finally it must contain the which visa application
charge (VAC) for the specified type of visa stated in the Schedule 1 of the Regulations.
3 Partner Visa (Subclasses 820 And 801) (2018) Homeaffairs.gov.au <https://www.homeaffairs.gov.au/trav/visa-
1/801-/Partner-visa-(subclasses-820-and-801)-document-checklist>

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Before made any decision, it is essential to take a notice to the department according to the
request might be reserved in written application. Where the visa has been provided there are
specific conditions which are imposed on the holder including employment and educational
restrictions which of not complied may get the visa cancelled. In addition any changes of
circumstances have to be notified to the department under section 105 of the MA. Whether the
visa is provided or not have to be informed to the applicant by the minister.
What happens if a visa application is invalid
In case it is found that the applicant has made an invalid visa application, then according to the
schedule 1, the fees paid by recipient is refundable. In addition where a visa application is
rendered as invalid it does not depict that the visa has been refused. It merely denotes that a valid
application is needed.
If the applicant has been provided with any bridging visa in relation to the visa application it
shall cease to exists within 28 days from which the visa application has been rejected. Where a
visa application has been disregarded by the department the applicant cannot hold a bridging visa
for such application. Further a judicial review can be made under the MA to determine the merit
of a visa application being adjudged invalid.
The visa application would be rendered as invalid in care the provisions of section 45 to 46 of the
Act, Division 2.2 and Schedule 1 of the Regulations are not satisfied by the applicant4.
Thanking you
4 Migration Act 1958 (Cth) s 46-46

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Answer 2
Dear Roland
Sub: Advice on Visitor Visa Class FA subclass 600
The Visitor Visa Class FA subclass 600 which has been provided to you comes with a few
specific conditions as imposed by the MA and MR. these conditions include 8503, 8101, 8501
and 8201 conditions. The conditions imposed on the visa are as follows
No Further stay [8503]: This condition imposes an obligation on the visa holder to leave
Australia as soon as the visa expires. The condition is known as “no further stay condition”
regulation 2.05(4) provides circumstances in which the condition can be waived by the
minister5. The circumstances include the situation where compassionate and compelling
circumstances have been created beyond the control of the visa holder which leads to
considerable change in position and a request for such wavier is made in writing.
Work condition [8101]: This condition imposes a restriction of not working in the country
(other than non paid voluntary work) while staying in Australia. Breach of this condition leads to
visa cancelation
Condition [8558]: The condition does not permit the holder to reside in the county for a period
of more than 12 months in the stipulated 18 months period.
The following requirements needs to be satisfied by the visa applicant Roland
Firstly he needs to provide that there is a de facto relationship between him Jeanette Queen for a
minimum period of 12 months before the application is made. Secondly he needs to have a valid
passport and thirdly the relationship has to be continuing in nature.
In the given situation it has been provided that you are on a visitor’s visa which is imposed with
the No further stay condition and thus he cannot apply for any other visa. You have a right to
request a waiver of the condition. However you have not filed a written application to do so.
Thus the condition of no further stay was not applied to the waived before making a visa
5 Migration Regulation 1998 (Cth) reg 2.04

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application. A valid application cannot be made as it is against the provisions of the MA6. Thus
you must first apply under section 503 for the visa application to be waived by filling Form
1447 'No Further Stay' waiver request. The condition will be waived by the minister if they are
satisfied that compelling and compassionate circumstances which have changed the ypur
position and were beyond your control have taken place.
Yours Faithfully
Answer 3
The code of conduct for registered migration agent is provided through Migration Regulation
1998 (Cth) Schedule 27.
Under part 11 it is the duty of the agent to ensure that a copy of the code is prominently
displayed in the office of the agent where he deals with the client. This requirement is complied
with by the agent.
A copy of consumer guide is has to be provided to the client and after doing so the same has to
be recorded by the agent
Part 3 of the code deals with obligation to clients and specifically paragraph 3.1 and paragraph
3.2 deal with the duty of maintaining client information confidentiality
In the given situation as the office is small visiting clients are able to see the file of other clients
which is not breaching the duty of confidentiality under para 3.1 on the part of the agent.
Further as the agent have informed Charles about the visa status of John the agent has violated
para 3.2 which provides that he must not share confidential information about clients without
their consent
Where an invalid application has been filed by me it is a clear breach of part 2 of the code. Para
2.1 states that it is the duty of a RMA to act in accordance to law and in the clients legitimate
interest.
6 Waiving Visa Condition 'No Further Stay' (2018) Homeaffairs.gov.au
<https://www.homeaffairs.gov.au/about/corporate/information/fact-sheets/fact-sheet-52b>
7 Migration Regulation 1998 (Cth) Schedule 2.

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Further under para 2.3 the professionalism of an RMA has to be reflected through the quality of
advice in the light of sound working knowledge provided by him to the client. Making an invalid
application this part has also been breached. Further code 2.4 and 2.5 may also be held as
violated as the agent may have not given regard to client’s dependence on the agent’s knowledge
and failure to be well versed with the contemporary migration laws.

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Bibliography
Migration Act 1958 (Cth)
Migration Regulation 1994 (Cth)
Migration Regulation 1998 (Cth) Schedule 2
Partner (Provisional) Visa (Subclass 309) And Partner (Migrant) Visa (Subclass 100) (2018)
Homeaffairs.gov.au <https://www.homeaffairs.gov.au/trav/visa-1/309-/Partner-(Provisional)-
visa-(subclass-309)-and-Partner-(Migrant)-visa-(subclass-100)-document-checklist>
Partner Visa (Subclasses 820 And 801) (2018) Homeaffairs.gov.au
<https://www.homeaffairs.gov.au/trav/visa-1/801-/Partner-visa-(subclasses-820-and-801)-
document-checklist>
Waiving Visa Condition 'No Further Stay' (2018) Homeaffairs.gov.au
<https://www.homeaffairs.gov.au/about/corporate/information/fact-sheets/fact-sheet-52b>